2020 (2) TMI 695 - Tri - IBC

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - debt due and payable or not - HELD THAT - It is clear that there is ongoing pre-existing dispute between both the parties. The Hon'ble Supreme Court has held that existence of undisputed debt is sine qua non of initiating Corporate Insolvency Resolution Process (CIRP) in Transmission Corporation of Andhra Pradesh Ltd. v. Equipment Conductors Cables Ltd. 2018 (10) TMI 1337 - SUPREME COURT . Petition dismissed.

Summary

Issues:
Initiation of Corporate Insolvency Resolution Process under Section 9 of Insolvency and Bankruptcy Code, 2016 based on operational debt and existence of a dispute between the parties.

Analysis:
The judgment by the National Company Law Tribunal, Cuttack involved a dispute between an Operational Creditor, M/s. Saiom Tours & Transport Private Limited, and a Corporate Debtor, M/s. Nirupama Mining and Transporting Private Limited. The Operational Creditor filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 seeking initiation of Corporate Insolvency Resolution Process against the Corporate Debtor due to an alleged outstanding amount of &8377; 31,64,607. The Operational Creditor claimed that the debt was due and payable by the Corporate Debtor for services rendered in front-end loading in mines and coal transportation. However, the Corporate Debtor denied the debt, asserting that there were no valid work orders and that the Operational Creditor owed them a substantial amount of &8377; 61,00,000.

The Corporate Debtor further contended that the Operational Creditor made false allegations and engaged in illegal activities, leading to a criminal case pending in court. The Corporate Debtor also highlighted an indemnity bond executed by the director of the Operational Creditor, holding him personally liable to settle dues amounting to &8377; 30,00,000. The Tribunal noted the ongoing pre-existing dispute between the parties, as evidenced by the conflicting claims and legal actions taken by both sides.

In the judgment, the Tribunal referred to the Supreme Court's ruling emphasizing the conditions for initiating Corporate Insolvency Resolution Process, including the existence of undisputed debt exceeding &8377; 1 lakh, documentary evidence of the debt due and payable, and the presence of a dispute between the parties. The Tribunal applied these principles and concluded that there was a plausible contention requiring further investigation, as there was a genuine dispute between the Operational Creditor and the Corporate Debtor. Therefore, the Tribunal dismissed the application under Section 9 of the Act, emphasizing that the existence of a dispute warranted rejection of the application.

The Tribunal's order, CP(IB) No. 42/CTB/2019, was dismissed without costs, allowing the Operational Creditor to seek other remedies available under different laws to settle any disputes. The Registry was directed to communicate the order to both parties, with a certified copy to be issued upon compliance with formalities.